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Chisholm, Richard --- "Aboriginal Children and the Placement Principle" [1988] AboriginalLawB 20; (1988) 1(31) Aboriginal Law Bulletin 4


Aboriginal Children and the Placement Principle

by Richard Chisholm

In this article Richard Chisholm examines section 87 of the Children (Care and Protection) Act 1987 (NSW) and a recent amendment to the Adoption of Children legislation. But firstly, he takes an overview of the legal historical background from which the Aboriginal child placement principle emerges.

It has become well known that child welfare and adoption laws and practices have been an important part of the persistent effort of non-Aboriginals to assimilate Aboriginal people. Even when this was not the intention, laws authorising state intervention into children's lives always run the risk of applying to children of minority groups the standards and assumptions of the majority, or at least of the social group to which the interveners (police, child welfare officers) belong. In the result, many Aboriginal children - we don't know how many - have been removed from their parents, their communities, and often from their Aboriginal identity, in circumstances where by present standards their removal was avoidable and tragic both for them and their parents and communities.

Since perhaps the late 1970s there have been attempts to come to grips with this problem, due in large part to the work of Aboriginal people themselves through the development of Aboriginal child care agencies, and education of non-Aboriginal people through presentations at seminars and conferences, publications, and films. The idea that pervades this work is that the needs of Aboriginal children should be met in ways which do not involve their being separated from their own people.

The legal expression of this idea has become known as the Aboriginal child placment principle. This principle is mainly intended to apply where the need has arisen to find a placement for a child. It applies with more difficulty in custody and similar disputes, where the task is not to find an appropriate placement but to choose between the competing proposals of the litigants.[1] It involves two components. First, there is a guideline for the placement of children: they should be placed (in descending order of preference) with members of their own immediate or extended family; or with members of their community; or with other Aboriginal people. Only if none of these placements can be made should they be placed in the care of non-Aboriginal people. Second, there should be Aboriginal participation in the decision- making process. Opinions differ about what this second component should involve. Aboriginal claims to self-determination or sovereignty suggest that Aboriginal people should have authority to determine placement, while more conservative opinion would merely seek to ensure that Aboriginal views are taken into account when the decision is made.

While there remain different views about aspects of the placement principle, it has achieved a remarkable degree of acceptance throughout Australia. In 1984 the state and territory Social Welfare Ministers agreed on adopting a version of the principle,[2] and in 1986 the Australian Law Reform Commission recommended that it be included in legislation recognising Aboriginal customary law; the Commission was able to cite an impressive number of bodies and individuals in favour of the principle, as well as analogies from North America[3] The apparent consensus conceals some important differences. In particular, the Ministers agreed to the principle as a policy, but were cautious about whether it should be implemented through law, and were (predictably) hostile to the idea of it being implemented by a Commonwealth. law On these and other grounds, the Minister's views were unacceptable to Aboriginal representatives.[4] Nevertheless, the emergence of the principle is in my opinion an important advance from the earlier view that child welfare should be used to assimilate Aboriginal children, and also from the view popular in the 1960s and early 1970s that to take account of Aboriginality was inherently discriminatory, and that the correct solution was for law and policy to ignore this factor. I have suggested elsewhere that the principle can be justified on a number of different grounds, notably an acceptance of cultural and racial diversity (multi-culturalism) and a wish to acknowledge the claims of Aboriginal people arising from their status as indigenous people, and the history of injustice towards them.[5]

Against this background, this article considers two recent New South Wales amendments affecting Aboriginal children. The first, a section of the new child welfare legislation, is an interesting and in some ways bold attempt to incorporate the placement principle into child welfare law. The second, an amendment to the adoption legislation dealing with the adoption of children by traditionally married Aboriginal couples, is relevant to the placement principle in that it has the potential to remove an impediment to Aboriginal people adopting children. Unfortunately, it seems to me such a blundering attempt that it may be seen more as an insult to Aboriginal people than a recognition of their rights and children's welfare.

The Children (Care and Protection) Act 1987 (NSW)

This Act came into force on 18 January 1988. It forms part of a package of legislation which repeals and replaces the Child Welfare Act 1939. The Children (Care and Protection) Act deals with children who are in need of care,[6] a term which replaces the previous categories of neglected and uncontrollable children.[7]

The placement principle is expressed in section 87 of the Act,[8] which is as follows:

87. An Aboriginal child shall not be placed in the custody or care of another person under this Part unless –

(a) the child is placed in the care of a member of a child's extended family, as recognised by the Aboriginal community to which the child belongs;

(b) if it is not practicable for the child to be placed in accordance with paragraph (a) or it would be detrimental to the welfare of the child to be so -placed - the child is placed in the care of a member of the Aboriginal community to which the child belongs;

(c) if it is not practicable for the chill to be so placed - the child is placed in the care of a member of some other Aboriginal famly residing in the vicinity of the child's usual place of residence; or

(d) if it is not practicable for the child to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the welfare of the child to be so placed – the child is placed in the care of a suitable person approved by the Director-General after consultation with -
(i) members of the child's extended fairy, as recognised by the Aboriginal community to which the child belongs; and
(ii) such Aboriginal welfare organisations as are appropriate in relation to the child.

It will be seen that this section incorporates both elements of the placement principle: a set of preferences (family-community-other Aboriginal placement) and a provision for consultation with the Aboriginal people. We shall consider these in turn.

The Structure of the Section: Preferred Placements and the Child's Welfare

The section contains a set of legislative preferences, in descending order of desirability. It will be convenient to refer to these alternatives as preferred placements: thus a placement under para (b) is a less preferred placement than para (a), and so on.

An important question in formulating the Aboriginal child principle is the relationship between the list of preferences and the well-established principle that the child's welfare is to be regarded as the paramount consideation in custody and guardianship cases. The most cautious view of the Aboriginal child placement principle is that it is no more than a guide to the child's welfare. It would follow that the court should opt for a less-preferred choice wherever it considers that to do so would benefit the child. On this approach, the list of preferences does not ultimately limit the court, for in the end it is still required to make whatever order will in its view be best for the child. Most custody guidelines are of this type.[9]

In this respect, S 87 is of considerable interest, for it uses a formula which gives the preferences more bite than the more familiar formulations.[10] The basis for opting for a less-preferred determination is not simply the court's view of the child's welfare, but that the preferred option is not practicable or would be detrimental to the welfare of the child. The most obvious example of a placement being impracticable is where no person in the preferred category is willing to have the child. A more interesting case would be where a person in a preferred category is willing to take the child but has insufficient resources for the task. This would arguably make the placement not practicable, but the court might well be able to put pressure on the Department to provide the resources that would make the placement practicable.

When would a placement be detrimental to the welfare of the child? This is a key question, and it is useful to compare the court's task under this phrase with the court's task under the usual principle that the child's welfare is the paramount consideration. Although both formulations refer to the child's welfare, there are significant differences. The question under S 87 is whether the preferred placement would be detrimental, This certainly means that if the court regards a preferred and a non-preferred option as equally capable of promoting the child's welfare, it must opt for the preferred placement. It is also clear that if the court is unable to say on the evidence whether the preferred placement is detrimental then it cannot justify a non-preferred placement.[11]

More difficult is the case where the court considers that while the neither option will place the child in real danger, the non-preferred placement will be better for the child. Whether it would in such a case be justified in choosing the non-preferred option appears to depend on whether detrimental is taken in an absolute sense of involving harm or disadvantage to the child, or in a relative sense, of meaning an outcome less advantageous than another possible placement. My view is that the first meaning is correct, since if the court were allowed to choose a less preferred option merely because it considered it would be better for the child, there would be no need for the unusual and deliberate phrasing of the provision.

If this analysis is correct, then in applying this provision the court should ask whether a preferred placement is practicable, and if it is, whether it would be detrimental to the child's welfare. Only if it is so detrimental should the court consider non-preferred options. On this reading, the provision is a rather strong version of the principle.[12]

The First Preference: extended Aboriginal Family

The phrase used in paragraph (a), extened family, as recognised by the Aboriginal community to which the child belongs is a neat effort to incorporate Aboriginal notions into the key elements of the section. It not only specifically refers to Aboriginal notions of the extended family, but acknowledges that there may be differences between communities on this matter and makes relevant the view of the child's own community.

The Second Preference: a member of the Aboriginal community to which the child belongs: para(b)

Apart from some tricky questions which might arise about the meaning of community,[13] this preference is relatively straight forward and requires no comment here.

The Third Preference: member of another Aboriginal family in the vicinity:para (c)

The third preference is rather narrowly drawn. First, it relates only to Aboriginal people residing in the vicinity of the child's usual place of residence. This limitation suggests that a decision has been made that is not significant for an Aboriginal child to be in the care of Aboriginal people as such; what is important is continuity of place and presumably continuing contact with members of the child's community.[14] By contrast, some other formulations of the principle assume that there is an advantage to an Aboriginal child to be placed with other Aboriginal people, even if they are remote from the child's own community.[15] I believe this is the view generally taken by experienced Aboriginal child care workers.

Second, there is room for argument about the significance of the phrase in the care of a member of some other Aboriginal family. It may[16] have been intended that the provision applies only to placement of the child with a family, as distinct, say, from a children's home or hostel run by Aboriginal people. The assumption is, it seems, that there is no advantage to a child in being cared for by Aboriginal people, as distinct from being with an Aboriginal family.

The Consultation Requirement

Paragraph (d) provides that if the more preferred options are not practicable or are detrimental to the child's welfare, the child may be placed in the care of a suitable person approved by The Director- General after consultation with members of the child's extended family, as recognised by the Aboriginal community to which the child belongs, and such Aboriginal welfare organisations as are appropriate in relation to the child. It will be noted that both family members and organisations must be consulted.

The requirement is mandatory: the opening words of the section are that an Aboriginal child shall not be placed in the custody or care of another person unless its provisions are complied with. The prohibition applies in general terms to all placements under this Part. The reference is to Part 5, Children in Need of Care. It thus applies to placements made by virtue of children's court orders in exercise of the jurisdiction over children who are found to be in need of care. It does not apply to the placement of children into voluntary care, or to short term placements under Part 2.[17]

Paragraph (d) requires judgments about several matters. What counts as consultation? Who are members of the extended family? Must they all be consulted? Which Aboriginal organisations are appropriate? These matters must be resolved by the court, for it is the court's task to satisfy itself that the conditions prescribed by the section have been met. If the Department wishes to place a child with a person under paragraph (d), it will have to present evidence that it has engaged in the consultation prescribed.

To Which Children Does The Section Apply?

The Act provides that Aboriginal has the same meaning as it has in the Aboriginal Land Rights Act 1983. (This form of drafting requires interested persons to buy two Acts instead of one. It shows a contemptuous attitude to the public, who are surely entitled to think that if they obtain a copy of the relevant Act they will find in it any significant definitions). That definition is as follows: -

Aboriginal means a person who -

a) is a member of the Aboriginal race of Australia',

(b) identifies as an Aboriginal; and

(c) it accepted by the Aboriginal community as an Aboriginal.[18]

This three-pronged definition appears to have a wide degree of acceptance among Aboriginal and non-Aboriginal Australians in its application to adults. There is a difficulty, however, in applying it to children.[19] A new born child presents the difficulty in its clearest form. The baby can hardly be said to identify as an Aboriginal (or for that matter, as a non-Aboriginal) since to identify presumably involves some element of choice that a new-born baby cannot make. Strictly construed, therefore, the definition would exclude a baby born to Aboriginal parents living in an Aboriginal community: the child would become Aboriginal only when he or she reached a sufficient degree of maturity to identify as such. This is a ludicrous result, but difficult to avoid on the wording of the definition.

The definition applies satisfactorily to the case of a child old enough to identify as Aboriginal and living in an Aboriginal community. This is indeed the clearest application of the Aboriginal child placement principle. Aboriginal agencies, however, are also very concerned about the position of Aboriginal children who have been removed from Aboriginal families and placed with non-Aboriginal foster parents or in institutional care. Such children, if they do not identify as Aboriginal, fall outside the definition, and thus outside the operation of the placement principle. Many Aboriginal workers, however, would say that such children ought to be re-introduced to the Aboriginal side of their inheritance, and if this does not happen they are likely to undergo an identity crisis, typically at around adolescence. To regard these children as simply non-Aboriginal appears, from this point of view, to be a case of the old trick of defining a problem in terms convenient for non-Aboriginals but not acceptable to Aboriginal people.

It is therefore unfortunate that the definition of Aboriginal child is so narrow. The definition distorts the nature of the problem by defining out a significant number of children whose Aboriginal inheritance should be taken into account by the law. The narrowness of the definition seems calculated to give offence to Aboriginal people, and its use is particularly unfortunate since the difficulty with this definition in the case of children was well recognised when the legislation was being drafted.[20]

It does not follow, however, that simply to widen the definition of Aboriginal child is the best response to the problem. We have seen that the version of the placement principle adopted by the Act is a rather strong version. In considering a placement of an Aboriginal child, preference must be given to an Aboriginal placement, even if the court thinks that a non-Aboriginal placement would be better for the child. In the case of a child who has been brought up as a non-Aboriginal, and perhaps even with a prejudice against Aboriginal people, this may be too drastic: at least some Aboriginal workers would surely recommend a gradual process of re-education, tailored to the needs of the child, rather than a strict rule requiring imme diate placement in an Aboriginal setting.

The situation of children who have spent part of their lives in non-Aboriginal care may thus require a more sensitive and flexible response than the-version of the Aboriginal child placement principle adpoted in the Act. Perhaps the way forward is to widen the definition of Aboriginal child to include all children having Aboriginal ancestry, but develop a more sensitive version of the placement principle, to take into account the different situations of different children.

The Adoption of Children Amendment Act 1987

The Legal Background

In the adoption legislation adopted throughout Australia in the mid-1960s, applicants for adoption were normally expected to be married, although there was provision for adoption by single people in certain circumstances. There was no provision for adoption by unmarried couples. In 1984, however, as a result of a report by the NSW Law Reform Commission, legislation was introduced making a range of provisions relating to de facto relationships. The Adoption Act was amended to make it possible for de facto couples to adopt, but only in very limited circumstances: they could only adopt their own biological child, or a child related to one of them and who had been brought up by them.[21]

Marriage was also important to the question of consent to adoption. Where the child was legitimate, consent was required from the father as well as the mother. Where the child was ex-nuptial (illegitimate), only the mother's consent was required.[22] In the 1970s, legislation (the status of children Acts) was passed in all jurisdictions except Western Australia to remove the disabilities of birth outside marriage. However the implications of this legislation were not carried through into adoption law: consent still did not have to be obtained from fathers of ex-nuptial children. Here too, however, there was a limited amendment in New South Wales arising out of the recognition of de facto relationships. From 1984, the fathers consent is required if he was in a de facto relationship with the mother after the child's birth, and the child formed part of the household.[23]

In 1986 the Australian Law Reform Commission recommended that Aboriginal customary law marriages should be recognised for the purpose of entitling the parties to adopt children under the adoption legislation, and also for the purpose of requiring the consent of both parties to a traditional marriage to the adoption of their children.[24]

The 1987 Amendment

The amendment, which came into force on 1 October 1987, deals with eligibility to adopt. It amends the provision allowing for adoption by de facto couples by adding a reference to Aboriginal adopters. A de facto couple may adopt an Aboriginal child where the parties are Aboriginal and are recog nised as being married according to the traditions of an Aboriginal community or Aboriginal group to which they belong.[25]

This amendment at first sight appears to be an improvement, in that it gives a greater opportunity for Aboriginal people to adopt than they previously had. Unfortunately, it does so in such a clumsy way that it may well be regarded as something of an insult to Aboriginal people rather than a recognition of their rights.

First, the amendment is based not on the recognition of traditional marriage as such but on including traditionally married persons as, to quote the Act, persons who are living together as husband and wife on a bona fide domestic basis although not married to each other. This is the precise opposite of what the Law Reform Commission recommended: not a recognition of traditional marriage, but an explicit statement that traditionally married Aborigines are not married as far as the law is concerned. The amendment falls into the trap clearly identified by the Law Reform Commission:

"To treat a traditional marriage as a de facto relationship is to deny recognition of what it purports to be. It is true that Aborigines enter into de facto relationslrps. But some Aborigines enter into traditional marriages, recognised by themselves and others as distinctive, socially-sanctioned arrangements. If possible, these should be specifically recognised thus maintaining rather than eroding a distinction Aborigines themselves are concerned to maintain."[26]

Second, the amendment is limited to the adoption of Aboriginal children. In practice, this may cause little difficulty, since the number of Aboriginal couples seeking to adopt non-Aboriginal children may be small. But in principle it seems extraordinally offensive. Far from recognising Aboriginal marriage and removing an impediment, the amendment leaves the law in a form that prevents traditionally married Aboriginal couples from adopting non-Aboriginal children. This provision cannot be justified on the basis of the chid's welfare, since in all cases the court may only make an adoption order if it is satisfied that the child's welfare will be promoted by the adoption: we do not need this kind of exclusion to protect children, white or black, from unsatisfactory adoptions. I suspect that this will be seen by Aboriginal people as a statement by the NSW Parliment that tribally married Aborigines are acceptable to adopt black children, but not white.

The third point has already been discussed in the context of the new child welfare laws: the definition of Aboriginal child is based on the Aboriginal Land Rights Act definition, and as explained above many children, especially new-bores, are likely to be excluded from the definition of Aboriginal, defeating the purpose of the amendment.

Fourth, the amendment does not deal with consent to adoption. If a tribally Aboriginal woman were to consent to the adoption of her child, the husband's consent is still not required. In this respect, again contrary to the Law Reform Commision s recommendations, the law still fails to recognise marriage under customary Aboriginal law.

It is by no means clear how significant all this is likely to be in practice. We do not have systematic information about the numbers of tribally married Aboriginal couples in

New South Wales, or their interest in adoption. However, it is highly embarrasing that what was no doubt intended as a progressive reform has ben handled so ineptly that it emerges as a considerable insult to Aboriginal people. The question should be urgently reconsidered, in consultation with Aboriginal people. But it seems to me perfectly clear what should be done: Aboriginal marriages should be simply recognised as marriage for the purpose of adoption law, as the Law Reform Commission has so convincingly argued, unless Aboriginal representatives oppose this measure.


[1] This distinction goes some way to explaining the fact that the placement principle has won acceptance in child welfare law, but courts have resisted it in custody cases, stressing the need to consider which proposal will best promote the child's welfare: see eg Marriage of Goudge [1984] FamCA 6; (1984) 9 Fam LR 500; 54 AIR 513, and Australian Law Reform Commission, Report No 31, The Recognition of Aboriginal Customary Laws, 1986 (cited hem as ALRC 31), pare 367, arguing that the placement principle should not apply to disputes between parents.

[2] In 1984 the Ministers approved the statement of the principle formulated in the Report of the Working Party of the Standing Committee of Social Welfare Administrators, Aboriginal Fostering and Adoption: Review of St ate and Territory Principles, Sydney, 1983. Sec A LRC 31, pact 352.

[3] ALRC 31, pans 344.347, 353-358

[4] ALRC 31, pan 352, n 54; Chisholm, R, Black Children: While Welfare? Social Welfare Research Centre, University of NSW, 1985 (hereafter cited as Black Children: White Welfare 110-111).

[5] Black Children: White Welfare, 117-120.

[6] This term is defined in S 10.

[7] Child Welfare Act 1939 (NSW) s 4 (uncontrollable) and S 72 (neglected).

[8] There is also a provision that where the court determines that a conflict of cultural factors exists, it should receive advice through an assessment report from the Director-General: S 74. Them is also a recognition that it may be in children's interests not to be removed from a particular cultural group in which the child has been brought up: s 73(3). These provisions, which are in my view admirable and sensible acknowledgements of cultural diversity and children's needs, may of course benefit Aboriginal as well as other children. They do not require analysis here.

[9] See for example Family Law Act 1975 (Cth), S 64(1).

[10] Compare the language of the Indian Child Welfare Act 1978 (USA) (in the absence of good cause to the contrary), discussed at ALRC 31 vol l, p 244, and the Commission's own formulation (except in special circumstances) at vol 2 p 270-271.

[11] Compare the position under the Family Law Act 1975 (Cth):

In the Marriage of Smythe (1983) 10 Pam LR 1029.

[12] I have discussed the relationship between Aboriginal claims and a commitment to the child's welfare in Black Children: White Welfare?. An example of another true exception to the paramount consideration principle is the Family Law (Child Abduction Convention) Regulations made under the Family Law Act: see Chisholm, R, Foreman, C and ORyan, S, Australian Family Law, 11,251-11,278, espec commentary to reg 16, at 11,257.3-11,257.4.

[13] The Aboriginal Land Rights Act 1983 refers to the Aboriginal community, perhaps intending all those living in the State as Aboriginal people, whiles 87 appears to refer to local Aboriginal communities.

[14] The idea that placement with other Aboriginal people is only desirable if they are in the same vicinity appears to derive from the Working party Report approved by the Welfare Ministers: see ALRC31 , para 352. The Northern Territory formulation has a similar limitation: Community Welfare Act 1983, s 69 (NT).

[15] See the guidelines previously formulated by the Department of Aboriginal Affairs, and the versions of the placement embodied in the Adoption Act 1984, s 50 (Vie) and the Family and Community Development Bill 1984 (Qld): ALRC 31 paras 359-364. See also the provisions of the Indian Child Welfare Act 1978 (USA) and the Canadian Formulations, discussed in ALRC 31, pass 353-358.

[16] It is perhaps arguable that the provision should not be so limited. For example, where a children's home is ran by an Aboriginal person, it could be argued that the child is in the care of a person who is a member of a some other Aboriginal family, even though the child is not placed with that family.

[17] Part 2 includes provision for temporary care arrangements (s 14), temporary custody orders arising at the end of a control order (s 15), and temporary refuge (s 17).

[18] Aboriginal Land Rights Act 1983 (NSW) s 4(l).

[19] discussed this difficulty in Black Children: White Welfare at p 5-7 and the Australian Law Reform Commission, after discussing the problem, decided that in the case of children Aboriginal should include any child of Aboriginal descent: ALRC 31, para 367.

[20] See above, note 18.

[21] Adoption of Children Act 1965 s 19(lA), introduced by the Adoption of Children (De Facto Relationships) Act 1984.

[22] See eg Adoption of Children Act 1965 (NSW) s26.

[23] Adoption of Children Act 1965, s 26(3), as amended by the Adoption of Children (De Facto Relationships) Act 1984.

[24] ALRC31, pans 272-279.

[25] Adoption of Children Act 1965, s 19(IA) (c), as amended by the Adoption of Children (Amendment) Act 1987.

[26] ALRC31,para 245.


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